Panchanan Bhowmick v. State of West Bengal — 1986 DIGILAW 402 (CAL)

JUDGMENT: Mookerjee, J:- The petitioners of these two applications claimed to be persons interested in respect of certain plots in mouza Hasia, P.S. Jagaddal district 24 Parganas which were originally requisitioned under s. 3(1) of the West Bengal Land (Requisition and Acquisition) Act 1948 (West Bengal Act 2 of 1948). Thereafter the State Government, under s. 4(1)(a) of the said Act had acquired these requisitioned lands for construction of Barrackpore Kalyani Expressway. On 21st December 1980, the Land Acquisition Collector, 24 Parganas, after determining compensation, made his award under s. 7(2) of the West Bengal Act 2 of 1948. The present petitioners being aggrieved, by the said award, made applications under s. 8(1) of the West Bengal Act 2 of 1948, requiring the matter of compensation to be referred to the court. The Collector accordingly referred the matter to the decision of the court. The learned Additional Special Land Acquisition Judge, 3rd Court Alipore heard analogously several reference cases including there made upon two applications under s. 8 of the said Act by the present petitioners of the applications under Article 227 of the Constitution of India. On 14th November, 1984 the Learned Additional Special Land Acquisition Judge delivered his judgment disposing of the said references. The learned Additional Special Land Acquisition Judge, inter alia, enhanced the market values of the different classes of acquired lands and ordered, that in addition to the said land values, the referring claimants would be entitled to recurring compensation at the rate of 6% and statutory allowance at the rate of 15%. 2. The petitioners filed two applications for review of the judgment and decree dated 14th November, 1984 of he learned Additional Special Land Acquisition Judge, 3rd Court, Alipore on the ground that the learned Judge had committed errors apparent on the face of the record in not awarding statutory allowance and interest at the rates provided respectively in s. 23(2) and s.28 of the Land Acquisition Act as amended by Land Acquisition (Amendment) Act 1984 (Act 68 of 1984) which had come into force on 24th September, 1984. The amended s. 23(2) of the Land Acquisition Act stipulated payment of statutory allowance at the rate of 30% and under amended s. 28 of the Act, the rate of interest was 9%. The amended s. 23(2) of the Land Acquisition Act stipulated payment of statutory allowance at the rate of 30% and under amended s. 28 of the Act, the rate of interest was 9%. The said review applications were registered as Misc Cases On 30th September, 1985 the learned Additional District Judge, 9th Court, Alipore, dismissed the misc. cases. He rejected the contention that his predecessor in office had committed any error apparent on the face of the record by not awarding statutory allowance and interest at the rate specified in s. 23(2) and 28 of the Land Acquisition Act as amended by Land Acquisition (Amendment) Act 1984. 3. Being aggrieved by the rejection of their review application the petitioners have filed these two Revisional application which have been heard in the presence of the State respondents. The first point for consideration is whether in the judgment and decrees dated 14th November, 1984 passed by the Additional Special Land Acquisition Judge, Alipore, there was any mistake or error apparent on the face of the record in other words, whether by not awarding statutory allowance at the rate mentioned in s. 23(2) and interest according to s. 28 of the Land Acquisition Act as amended by the Land Acquisition (Amendment) Act 1984 the learned Additional Special Land Acquisition Judge had committed an evident error. It is immaterial whether or not the referring claimants had relied upon the said amended provision at the time of the original hearing or how the alleged error or omission to award statutory allowance and interest at the enhanced rates had occurred. In case, the learned Judge had failed to apply the correct law regarding grant of statutory allowance and award of interest, same would be and error apparent on the face of the record. When a court did not apply the provisions of an enactment which on the face of it would apply to a case, same would be a mistake or error apparent on the face of the record (vide paragraph 10 of Mulla on Civil Procedure Code, 13th Edition. Vol II page 1671). At the same time a mere error of law is not a ground of review. A distinction has been always drawn between an error simplicitor and an error would be a ground of review. Mr. Vol II page 1671). At the same time a mere error of law is not a ground of review. A distinction has been always drawn between an error simplicitor and an error would be a ground of review. Mr. Dasgupta learned advocated appearing on behalf of the petitioners has relied upon the decision of the Supreme Court in the case of Raja Shatrunjit v. Mohammad Azmat Khan and others AIR 1971 SC 1474 , in support of his submission that retrospective amendment of law was a sufficient ground for review of a judgment which was rendered before the said retrospective amendment of law was published in the Official Gazette. In the case of Raja Shatrunjit v. Mohammad Azmat Khan (supra), on 27th November, 1962 a Full Bench of the Allahabad High Court dismissed the revisional application upholding the view of the Special Judge that until and unless the decree charged the mortgaged property, no reduction could be ordered under U.P. Zamindars Devi Reduction Act 1952. After disposal of the revision petitioner the U.P. Debt Reduction Act, 1952 was amended and it had received the date of the order of the Allahabad High Court dismissing the revision petition. On 4th December, 1962 the said Amendment Act was published in the Official Gazette. The Supreme Court upheld the High Court order accepting the review application of the judgment debtor, setting aside the order of the Special Judge and remanding the case for disposal in accordance with the provisions of the amended U.P. Zamidars Debt Reduction Act, 1952. We are unable to distinguish the Supreme Court decision in the case of Raja Shatrunjit v. Mohammad Azmat Khan (supra), as suggested by Mr. Chatterjee, the learned Standing Counsel, on the ground that while in the said reported case the amended law was published in the Official Gazette after the High Court had already dismissed the Revisional application, in the instant cases, the learned Special Land Acquisition Judge delivered his judgment after the Land Acquisition (Amendment) Act, 1984 had already been published in the Official Gazetted on 24th September 1984. We have already pointed out that in case the referring claimants were entitled to receive statutory allowance and interest according to the said amended provisions of s. 23(2) and 28 of the Land Acquisition Act 1984 the learned Additional Special Land Acquisition Judge had clearly committed errors apparent on the face of the record by applying unamended s. 23(2) and 28 of the Land Acquisition Act which were no longer in force. The court under sub s. (2) of s. 23 of the said Act, in addition to the market value of the land, shall in every case award a sum at the prescribed rate on such market value in consideration of the compulsory nature of the acquisition. 4. Mr. Chatterjee, learned Standing Counsel, has secondly submitted that West Bengal Act 69 of 1978 has incorporated in sub-s. 2(a) of s. 7 of the West Bengal (Requisition and Acquisition) Act 1948, the sub s. (2) of s. 23 of the Land Acquisition Act as the said provision stood on the date of such incorporation. Therefore, subsequent to such incorporation of amendment made in sub-s. (2) of s. 23 of the Land Acquisition Act can have no legal effect in determining compensation for lands acquired under s. 4 of the West Bengal Land (Requisition and Acquisition) Act. The Collector under sub-s (2)(a) of s. 7 of the Act and the Court under s. 8(2) of the said Act were bound to award statutory allowance at the rate of 15% according to sub-s. (2) of s. 23 of the Land Acquisition Act as the said provision stood at the date of its incorporation in the west Bengal Act 2 of 1948. 5. The learned advocate on both sides have relied upon the decision of the Supreme Court in the case of State of Madhya Pradesh v. M. V. Narasimhan AIR 1975 SC 1835 regarding the principles applicable to legislation by incorporation. 5. The learned advocate on both sides have relied upon the decision of the Supreme Court in the case of State of Madhya Pradesh v. M. V. Narasimhan AIR 1975 SC 1835 regarding the principles applicable to legislation by incorporation. Fazl Ali, J. among other reported decisions, had referred to the case of Secretary of State for India v. Hindusthan Co-operative Insurance Society Ltd. 58 IA 259 (266-267) : AIR 1931 PC 149 (152) and had observed that after the provision of the previous Act is incorporated in the subsequent Act, the incorporated provision survives even if the previous Act is repealed, amended, declared a nullity or erased from the statute book Fazl Ali, J. in the case of State of Madhya Pradesh v. M. V. Narasimhan (supra) in paragraph 16 of his judgment after referring to the other reported decisions had set out four exceptions to the principle that incorporations made in subsequent Act are unaffected by any repeal or amendment of the previous Act. (a) where the subsequent Act and the previous Act are supplemental to each other. (b) where two Acts are pari materia (c) where amendment of the previous Act if not imported into the subsequent Act would render the subsequent Act wholly unworkable and ineffectual, and (d) where the amendment of the previous Act either expressly or by necessary intendment applies the said provisions to the subsequent Act. 6. In view, the present case would be covered by the exceptions mentioned above. Under sub-s. (1) of s. 7 of the West Bengal Land (Requisition and Acquisition) Act 1948, compensation shall be determined by the Collector in accordance with the principles set out in sub-s. (1) of s. 23 of the Land Acquisition Act 1894 so far as they may be applicable subject to the proviso under the said sub-s. (1) of s. 7 of the Act. Under sub-s. (2)(a) of s. 7 of the West Bengal Act 2 of 1948, the Collector makes an award in accordance with the principles set out in s. 11 of the Land Acquisition Act 1894. The said sub-s. (2)(a) of s. 7 had been amended by West Bengal Act of 1978. Under sub-s. (2)(a) of s. 7 of the West Bengal Act 2 of 1948, the Collector makes an award in accordance with the principles set out in s. 11 of the Land Acquisition Act 1894. The said sub-s. (2)(a) of s. 7 had been amended by West Bengal Act of 1978. The unamended s. 2(a) expressly provided that no amount referred to in sub-s. (2) of s. 23 of the Act shall be included in the award” In other words, for acquisition of any land under West Bengal Act 2 of 1948, the Collector is to make an award in accordance with the principles set out in s.11 of Land Acquisition Act 1894. The rest of the words in the said sub-s. (2)(a) of s. 7 which were inserted by West Bengal Act 69 of 1978 only clarified that an award under s. 7(2)(a) of the West Bengal Act 2 of 1948 shall be made according to the principles set out in s. 11 of the Land Acquisition Act. The general words award in accordance with the principles set out in s. 11 of the Land Acquisition Act 1894 used in sub-s. (2)(a) of s. 7 of Act 2 of 1948 would have been sufficient to attract to an award under s. 7(2) of the said Act application of all the provisions which apply to making an award under s. 11 of the Land Acquisition Act. The unamended s. 7(2)(a) of Act 2 of 1948 had however expressly excluded award of such statutory allowance. The Act 69 of 1978 however deleted the same and expressly provided for inclusion in an award under Act 2 of 1948, the amount referred to in s. 23(2) of the Land Acquisition Act. 7. When the Collector makes a reference to the Court under s. 8.(1) of the West Bengal Act 2 of 1948, the principles set out in sub-s. (1) and in clause (a) of s. 7(2) of the West Bengal Act 2 of 1948 shall so far as they may be applicable apply in respect of any reference made to the court under sub s. (1) of s. 8 of the Act. In other words, in making its award the court is also bound to award solatium in the manner provided in s. 23(2). In other words, in making its award the court is also bound to award solatium in the manner provided in s. 23(2). Upon reading of s. 7(2)(a) and 8(2) of the Act 2 of 1948, we hold that both the Collector and the Court in making the award are to apply the principles contained inter alia in sub s. (1) and (2) of s. of the Land Acquisition Act. Unlike some other provisions the s.7 and 8 of the West Bengal Act 2 of 1948 lay down manner of determination of compensation and at the same time adopt the principles of valuation contained in the Land Acquisition Act and the West Bengal Land (Requisition and Acquisition) Act are laws for compulsory purchase for public purposes Both provide for determination of compensation according to the same principles. In case it is held that while for lands acquired under the Land Acquisition Act in addition to market value, statutory allowance at the rate of 30% under amended s. 23(2) of the Act shall be payable, but for lands acquired under West Bengal Land (Requisition and Acquisition) Act in addition to market value statutory allowance shall be payable at the rate of 15%, the same would result in discrimination and violation of right of equality guaranteed by Article 14 of the Constitution of India. We ought t avoid and interpretation of s. 8 of the West Bengal Act 2 of 1948 which would make the said provision repugnant to Article 14 of the Constitution. If, on the other hand, we hold that s. 8 of the West Bengal Act 2 o f1948, had adopted the principles contained in both the sub-ss. (1) and (2) of s. 23 of the Land Acquisition Act, then in passing an award under West Bengal Act 2 of 1948 both the Collector and the Court would be bound to allow solatium at the rate prescribed by s. 23(2) of the Land Acquisition Act on the date of the award. For the foregoing reasons, we conclude that the Acquisition (Amendment) At 1984 had committed error apparent on the face of the record by awarding statutory allowance at the rate of 15% of the market value and not at the rate of 30% prescribed by amended s. 23(2) of the said Act. For the foregoing reasons, we conclude that the Acquisition (Amendment) At 1984 had committed error apparent on the face of the record by awarding statutory allowance at the rate of 15% of the market value and not at the rate of 30% prescribed by amended s. 23(2) of the said Act. It was an evident error on the part of the Court below to overlook the amended provisions of s. 23(2) of the Land Acquisition Act. It does not require holding of any enquiry to find out that in its judgment dated 14th November 1984 the court below had awarded statutory allowance according to s. 23(2) of the Land Acquisition Act as the said provision stood before coming into force of the Land Acquisition (Amendment) Act 1984. 8. The learned advocated for both parties had drawn our attention to the decision of the Supreme Court in the case of Bhag Singh & ors. v. Union Territory of Chandigarh AIR 1985 SC 1576 . The present case in which the judgment of the Land Acquisition Judge was delivered after the commencement of the Land Acquisition (Amendment) Act 1984, undisputedly does not come within the scope of s. 30(2) of the Land Acquisition (Amendment) Act 1984. Overruling the earlier Supreme Court decision in the case of Ramalajammanniavaru v. Special Land Acquisition Offficer AIR 1985 Sc 576 , the court in the case of Bhag Singh & ors. v. Union Territory of Chandigarh (supra), inter alia held that the provisions of the amended s. 23(2) and s.28 of the Land Acquisition Act would be applicable to all orders and judgments of the Land Acquisition Judge, High Court and the Supreme Court delivered between 30th of April, 1982 and the commencement of the Amending Act irrespective of the fact whether the award by the Collector or the Court was made before or after 30th of April, 1982. In other words according to the decision in Bhag Singh’s case (supra) irrespective of the date of the award by the Collector or the Land Acquisition Judge, the High Court and the Supreme Court in terms of s. 30(2) of the Land Acquisition (Amendment) Act 1984, in all their judgments delivered after 30th of April, 1982 shall award statutory allowance and interest at the rates mentioned in the amended provisions. The observations made in Bhag Singh’s case (supra), indicated that s. 23(2) and s. 28 of the Land Acquisition Act, as amended by the Land Acquisition (Amendment) Act 1984, would be applicable to all pending proceeding before the Court including the High Court and the Supreme Court. We find that there is no reason why benefits of enhanced solatium under the amended s. 23(2) of the Land Acquisition Act, and increased rate of interest prescribed by s. 28 of the amended Land Acquisition Act should be denied to the claimants of the reference case which are disposed of by the Land Acquisition Judge after the commencement of the Land Acquisition (Amendment) Act 1984. In some of the reported case, awarding of statutory allowance under s. 23(2) of the Land Acquisition Act had been considered as a duty of the Land Acquisition Judge. Therefore, we hold that the learned Additional Special Land Acquisition Judge, who delivered his judgment in he reference cases after the Land Acquisition (Amendment) Act 1984 had already come into force, was bound to award statutory allowance under s. 23(2) and allow interest respectively under s. 23(2) and s. 28 of the Land Acquisition Act as amended by Act 68 of 1984. The Court below had committed a manifest error by awarding such allowance and interest according to the provisions of law which were no longer in force on the date of the delivery of his judgment. Accordingly, the judgement and decree of learned Additional Special Land Acquisition Judge dated 14th November, 1984 ought to be reviewed under Order 47 Rule 1 of the Code. Therefore, it was unnecessary to consider whether under s. 151 of the Code, the court below could have altered the directions in the judgement and decree dated 14th November, 1984 regarding payment of statutory allowance and interest. At the beginning of our judgement, we have recorded that the claimants did not challenge the determination of the land value. Therefore, even after review the said part of the judgement and decrees in the two reference cases would remain unchanged. 9. For the foregoing reasons, we allow this Revisional Application, set aside the order complained of. We direct the Court below to dispose of the two Applications for review of the judgement and decree dated 14th November. 1984 in the two reference cases at the instance of the petitioners. 9. For the foregoing reasons, we allow this Revisional Application, set aside the order complained of. We direct the Court below to dispose of the two Applications for review of the judgement and decree dated 14th November. 1984 in the two reference cases at the instance of the petitioners. Since in other reference cased the claimants did not apply for review, the judgement and decree passed in the said cases could would remain as originally passed. The will be no order as to costs. Susanta Chatterji, J: I agree. Application allowed.